Siler v. Brady Independent School Dist., 75-2634

• Decision Date: 31 May 1977
• Docket Number: No. 75-2634,75-2634
• Citation: 553 F.2d 385
• Parties: W. R. SILER, Plaintiff-Appellant, v. BRADY INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 385

553 F.2d 385

W. R. SILER, Plaintiff-Appellant, v. BRADY INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.

No. 75-2634.

United States Court of Appeals, Fifth Circuit.

May 31, 1977.

Larry Watts, Houston, Tex., Bob Gibbins, Austin, Tex., for plaintiff-appellant.

Emerson Banack, Jr., William T. Armstrong, III, San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, TJOFLAT and HILL, Circuit Judges.

GODBOLD, Circuit Judge:

This is a teacher nonrenewal case. Plaintiff Siler claims that he had de facto or constructive tenure which, under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), was a protectible property interest that entitled him to an administrative hearing meeting rudimentary standards of due process before the school board could decide not to renew his contract. The district court held that he did not have a property interest within the meaning of Roth and Sindermann. We agree.

Siler was employed by the Melvin District at the commencement of the spring semester of the 1969-70 school year, and, under one-year contracts, for the years 1970-71 and 1971-72. In August 1971 Melvin District was annexed by the Brady District. With respect to the merger the Brady Board adopted a resolution addressed to the Melvin Board, which was given currency in the local newspaper. It stated:

We would consider ourselves bound by the terms of your classroom teachers' contracts and such teachers would be assigned teaching duties in the Brady school system commensurate with the orderly placement of personnel by the school administrators. At contract renewal time, these teachers would be considered upon merit in exactly the same manner as is now in effect in our system for consideration of our present teachers.

Under the written policies and regulations of the Brady District, the superintendent recommended employment and dismissal of teachers, and the Board made decisions on appointment or reappointment after considering the superintendent's recommendation.

In the district court hearing, the superintendent described the employment relationship in the Brady system in this way:

The teachers, I think, had the confidence in me that they would have a job or have my recommendation if they followed the policies of the school district and did a good teaching job.

He explained that the district's policy was to base renewal on quality of performance in the preceding year, that he would not recommend nonrenewal without cause and that a teacher in the district knew he had a job as long as he did a good job. He considered that he had to have substantial cause, as opposed to frivolous or insubstantial cause, for a recommendation of nonrenewal. These policies he considered to apply equally to former Melvin teachers.

Members of the Board acknowledged that teachers would expect to be re-elected annually if they did a good job, and that teachers were encouraged to and did feel secure in their employment.

A teacher initially employed in the Brady District for 1971-72 testified that as a result of a faculty orientation meeting conducted by the superintendent and other school officials he understood that "provided . . . we do a good job and do what is expected of us in terms of our assignments, then . . . we would maintain our job."

Siler signed no written contract with the Brady District for 1971-72. Rather Brady simply took over his Melvin contract. Commencing at the very beginning of the ensuing year, and continuing throughout the year, Siler had a continuing series of difficulties with the principal of the school to which he was assigned. In March 1972 the principal did not recommend Siler's reemployment for another one-year period, and at a regular Board meeting, the Board, in closed-executive session, approved the nonrenewal of appellant. Siler learned from the principal that he had not been recommended and asked to appear before a formal meeting of the Board, and he was permitted to do so. After the meeting the Board denied Siler's "request for reconsideration" of the nonrenewal of his contract, and in a letter to the appellant cited a lengthy list of deficiencies in his performance as the reasons for its action. In the district court the Board acknowledged that its procedures relating to this meeting did not comply with due process, but despite this concession the district court held that due process was satisfied. It is not necessary for us to reach this issue.

A terminated or nonrenewed public employee is entitled to the Fourteenth Amendment's procedural safeguards only if his termination or nonrenewal is a deprivation of liberty or property interests. Board of Regents v. Roth, supra, 408 U.S. at 571-72, 92 S.Ct. at 2705-06, 33 L.Ed.2d at 557-58. In the case at bar, appellant has made no claim that he has been deprived of any liberty interest but maintains that he has been deprived of a property interest the "right" to have his contract renewed unless good cause is shown for a nonrenewal. Reduced to its essentials, plaintiff's position is that the Brady system's policy that teachers could expect to be rehired if they satisfactorily performed their jobs created de facto tenure, or a common law of the system in either event a "property interest" requiring the Board to conduct a hearing before it could reach a decision based on grounds of unsatisfactory job performance, not to reemploy a teacher after his first year of employment.

As the Supreme Court recently emphasized in its decision in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), property interests are created by state law, and a court in reviewing whether an individual has been deprived of a property interest must first look to state law to determine if there exists an actual underlying property interest. As Justice Stevens wrote in that case,

A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.

426 U.S. at 344, 96 S.Ct. at 2077, 48 L.Ed.2d at 690. Following the teachings of Bishop v. Wood, we must first examine Texas law to see if it grants to Siler a protectible property interest. ¹ We find that it does not.

The leading Texas case on de facto tenure is Hix v. Tuloso-Midway Independent School District, 489 S.W.2d 706 (Tex.Civ.App.1972), writ ref'd n. r. e. In that case one of the challenges mounted by a teacher against the School...